Rhinehart v. Montgomery

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 MICHAEL JOSEPH RHINEHART, Case No.: 22-CV-678 JLS (MMP) 12 Plaintiff, ORDER DENYING DEFENDANTS’ 13 v. MOTION TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS 14 W.L. MONTGOMERY, Warden; STATUS J. RODRIGUEZ, Correctional Officer; [15] and ARVIZU, Correctional Officer, (ECF No. 19) [16] Defendants. [17] 18 Presently before the Court is a Motion to Revoke Plaintiff’s In Forma Pauperis 19 Status (“Mot.,” ECF No. 19), a Memorandum of Points and Authorities in support thereof 20 (“Mem.,” ECF No. 19-1), and a Request for Judicial Notice (“RJN,” ECF No. 19-2) filed 21 by Defendants J. Rodriguez and Arvizu (collectively, “Defendants”). Plaintiff Michael 22 Joseph Rhinehart filed an Opposition (“Opp’n,” ECF No. 31) to Defendants’ Motion, and 23 Defendants responded with a Reply (“Reply,” ECF No. 32). The Court deems this matter 24 appropriate for resolution without oral argument pursuant to Civil Local Rule 7.1(d)(1). 25 Having carefully considered the Parties’ arguments and the applicable law, the Court 26 DENIES Defendants’ Motion. 27 / / / 28 / / / 1 BACKGROUND 2 The Court incorporates by reference the factual and procedural background set forth 3 in the honorable Larry Alan Burns’ February 27, 2023 Order (“Order,” ECF No. 16) and 4 sets forth here only those additional facts relevant to the instant motion. 5 In the Order, Judge Burns dismissed without prejudice Plaintiff’s claims that W.L. 6 Montgomery, in his capacity as warden, authorized both constant illumination of Plaintiff’s 7 cell and Defendants’ application of lockbox restraints to Plaintiff. Order at 3–5. These 8 dismissed claims comprised all of Plaintiff’s claims against W.L. Montgomery. See id. 9 Judge Burns did not, however, dismiss Plaintiff’s claims against Defendants relating to 10 their alleged use of lockbox restraints. Id. at 5–10. Judge Burns ordered Defendants to 11 answer Plaintiff’s Complaint (“Compl.,” ECF No. 1) by March 13, 2023. Id. at 10. 12 Defendants answered the Complaint on March 7, 2023. See ECF No. 17. Plaintiff 13 then filed an interlocutory appeal on March 13, 2023, which the Ninth Circuit dismissed 14 for lack of jurisdiction on April 26, 2023. See ECF Nos. 18, 23. While Plaintiff’s appeal 15 was pending, Defendants Arvizu and Rodriguez filed the instant Motion. The case was 16 transferred to the undersigned on December 21, 2023. See ECF No. 34. 17 LEGAL STANDARD 18 In order to further “the congressional goal of reducing frivolous prisoner litigation 19 in federal court,” the Prison Litigation Reform Act (“PLRA”) provides that prisoners with 20 three strikes or more cannot proceed in forma pauperis (“IFP”). Tierney v. Kupers, [21] 128 F.3d 1310 , 1311–12 (9th Cir. 1997); see also Andrews v. King, 398 F.3d 1113 , 22 1116 n.1 (9th Cir. 2005) (noting the “three strikes” terminology). A prisoner has three 23 strikes if: 24 on [three] or more prior occasions, while incarcerated or detained in any facility, [the prisoner] brought an action or appeal in a [25] court of the United States that was dismissed on the grounds that 26 it is frivolous, malicious, or fails to state a claim upon which relief may be granted . . . . [28] 28 U.S.C. § 1915 (g). 1 When courts “review a dismissal to determine whether it counts as a strike, the style 2 of the dismissal or the procedural posture is immaterial. Instead, the central question is 3 whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a 4 claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. 5 Wards, 738 F.3d 607, 615 (4th Cir. 2013)). An action fails to state a claim if it does not 6 survive a 12(b)(6) challenge, is frivolous if it lacks “basis in law or fact,” and is malicious 7 if it was filed “to harm another.” King, 398 F.3d at 1121 (internal quotation marks omitted) 8 (quoting Webster’s Third New International Dictionary 913, 1367 (1993)). 9 Defendants typically carry the initial burden to produce evidence demonstrating a 10 prisoner is not entitled to proceed IFP. Id. at 1120 . Once a defendant “produce[s] 11 documentary evidence that allows the district court to conclude that the plaintiff has filed 12 at least three prior actions that were dismissed because they were ‘frivolous, malicious or 13 fail[ed] to state a claim,’” the burden shifts to the prisoner to explain why a prior dismissal 14 should not count as a strike. Id. (second alteration in original) (quoting 28 U.S.C. 15 § 1915(g)). 16 Once a prisoner has accumulated three strikes, § 1915(g) prohibits said prisoner 17 from proceeding IFP in federal court unless the prisoner faces an “imminent danger of 18 serious physical injury.” See 28 U.S.C. § 1915 (g); Andrews v. Cervantes, 493 F.3d 1047 , 19 1051–52 (9th Cir. 2007). A prisoner qualifies for this exception if her “complaint makes a 20 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at 21 the time of filing.” Id. at 1055 (quoting 28 U.S.C. § 1915 (g)). Danger is imminent if it is 22 “ready to take place,” or “hanging threateningly over one’s head.” Id. at 1056 (internal 23 quotation marks omitted) (quoting Merriam-Webster’s Collegiate Dictionary 580 (10th ed. 24 1999)). Conversely, a complaint does not allege imminent danger where it alleges only 25 “past injury or generalized fears of possible future harm.” Hernandez v. Williams, No. 26 21CV347-MMA-KSC, 2021 WL 1317376 , at *2 (S.D. Cal. Apr. 8, 2021) (citing 27 Cervantes, 493 F.3d at 1053 ). 28 / / / 1 When determining whether a prisoner proceeding pro se has adequately alleged an 2 imminent danger of serious physical injury, a court must liberally construe the prisoner’s 3 allegations. See Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). Moreover, a 4 court “should not make an overly detailed inquiry into whether [a prisoner’s] allegations 5 qualify for the exception,” as § 1915(g) “concerns only a threshold procedural question.” 6 Cervantes, 493 F.3d at 1055 . 7 ANALYSIS 8 I. Timeliness of Defendants’ Request 9 Plaintiff first argues that Defendants should have attempted to revoke Plaintiff’s IFP 10 status at the outset of this case. See Opp’n at 2. Plaintiff, however, cites no authority to 11 support his contention that a defendant may raise the issue of whether a plaintiff is entitled 12 to IFP status only at the outset of litigation. See generally id. And persuasive authority 13 suggests a contrary conclusion; in Harris v. City of New York, the Second Circuit held that 14 a district court can revoke a prisoner’s IFP status pursuant to § 1915(g) even when a 15 defendant does not raise the issue in their initial pleadings. 607 F.3d 18, 23 (2d Cir. 2010). 16 Therefore, the Court proceeds to consider the merits of Defendants’ Motion. 17 II. Plaintiff’s Strikes 18 To meet their initial burden, Defendants request that the Court take judicial notice 19 of court records from five dismissed actions that they argue constitute strikes against 20 Plaintiff under § 1915(g). See generally RJN. Defendants provide excerpts of the relevant 21 records from these actions. RJN Exs., ECF No. 19-3.1 The Court will, as Defendants 22 request, take judicial notice of (1) the existence of these actions and (2) the reasons the 23 court in each action gave for dismissing said action. See United States v. Wilson, 631 F.2d 24 118, 119 (9th Cir. 1980) (stating that a court may take judicial notice of its own records in 25 other cases, as well as other courts’ records); Bias v. Moynihan, 508 F.3d 1212, 1225 (9th [28] 1 All citations to the RJN Exhibits refer to the blue page numbers affixed to the top of the Exhibits in 1 Cir. 2007) (similar); cf. King, 398 F.3d at 1121 (requiring a district court to “careful[ly] 2 evaluat[e]” orders dismissing an action to determine whether the action was dismissed 3 because it was frivolous, malicious, or failed to state a claim). The Court concludes, 4 pursuant to Federal Rule of Evidence 201(b)(2), that the existence of these actions—and 5 the reasons for dismissal stated within orders issued during the pendency of said actions— 6 “can be accurately and readily determined from sources whose accuracy cannot reasonably 7 be questioned.” 8 After reviewing the records provided by Defendants—and independently reviewing 9 the dockets associated with said actions—the Court concludes that at least the following 10 four actions constitute strikes:2 11 (1) In Rhinehart v. Harrington, No. 1:09-cv-00411-SMS PC (E.D. Cal. 12 Jan. 10, 2011), the district court dismissed the entire action with prejudice for failure to 13 state a claim upon which relief could be granted. RJN Ex. A at 2–5. 14 (2) In Rhinehart v. Harrington, No. 1:10-cv-00869 GSA PC (E.D. Cal. 15 Dec. 3, 2010), the district court dismissed the entire action with prejudice for failure to 16 state a claim upon which relief could be granted. RJN Ex. B at 7–10. 17 (3) In Rhinehart v. Marshall, No. 95-16313 (9th Cir. Jan. 12, 1996), the Ninth 18 Circuit denied IFP status both pursuant to the district court’s certification that an appeal 19 would not be taken in good faith and based on its own independent review of the record. 20 RJN Ex. D at 24. The Ninth Circuit subsequently dismissed the appeal for failure to 21 prosecute. Id. at 23.3 [24] 2 As 28 U.S.C. § 1915 (g) applies after a prisoner has brought a strike-worthy action or appeal on three or more occasions, the Court need not resolve whether the final action highlighted by Defendants constitutes 25 a strike under § 1915(g). See RJN Ex. C. 26 3See Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (noting that where the Ninth Circuit dismisses an appeal in reliance on the district court’s finding that the appeal was not taken in good faith, said [27] dismissal constitutes a strike); Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015) (concluding that a 28 strike should be assessed for an appeal where the Ninth Circuit first rejects a prisoner’s IFP application as 1 (4) In Rhinehart v. Marshall, No. 95-17156 (9th Cir. Jan. 26, 1996), the Ninth 2 Circuit denied IFP status both pursuant to the district court’s certification that an appeal 3 would not be taken in good faith and based on its own independent review of the record. 4 See RJN Ex. E at 29. The Ninth Circuit subsequently dismissed the appeal for failure to 5 prosecute. Id. at 28. 6 As Defendants have met their initial burden, Plaintiff must explain why these four 7 actions do not constitute strikes. See King, 398 F.3d at 1120 . Plaintiff does not contest 8 Defendants’ assertion that the above actions constitute strikes, but instead argues only that 9 he was in imminent danger at the time he filed his present Complaint. See generally Opp’n. 10 Accordingly, the Court concludes that at the time the Complaint was filed, Plaintiff was 11 not entitled to proceed IFP unless he was in imminent danger of serious physical injury. 12 See Cervantes, 493 F.3d at 1052–53. 13 III. Imminent Danger 14 The Court will first address Defendants’ contention that it may not consider 15 allegations in the Complaint relating to claims previously dismissed by Judge Burns. Then, 16 the Court will turn to whether Plaintiff’s Complaint plausibly alleges an imminent danger 17 of serious physical injury. 18 A. Dismissed Claims 19 Defendants contend that because the Court has dismissed Plaintiff’s claim relating 20 to the alleged constant illumination of his cell, the Court should not consider that claim 21 when determining whether Plaintiff was in imminent danger of serious physical injury at 22 the time he filed his Complaint. See Reply at 4. Plaintiff responds that the imminent danger 23 exception applies to his Complaint in its entirety. See Opp’n at 4. 24 Defendants’ argument is in tension with Cervantes. There, the Ninth Circuit held 25 that the availability of the imminent danger exception “turns on the conditions a prisoner [27] 28 F.3d at 1312 (holding that district courts, when applying § 1915(g), should assess strikes for qualifying 1 faced at the time the complaint was filed, not at some earlier or later time.” Cervantes, [2] 493 F.3d at 1053 . Cervantes also clarified that if one of the prisoner’s claims satisfies the 3 imminent danger requirement, a “district court must docket the entire complaint and 4 resolve all its claims.” Id. at 1053–54. In other words, “the exception does not operate on 5 a claim-by-claim basis or apply only to certain types of relief.” Id. at 1052 . 6 To be sure, the Ninth Circuit in Cervantes did not face a situation where the district 7 court had already dismissed certain claims from the prisoner’s action pursuant to § 1915(g). 8 But Defendants cite no case supporting their conclusion that the Court should ignore a 9 dismissed claim when determining whether a prisoner’s complaint satisfies the imminent 10 danger exception. See generally Mot.; Reply. And to allow Defendants to move to dismiss 11 one of Plaintiff’s claims—and then separately attack Plaintiff’s other claims as barred by 12 § 1915(g)—would run counter to the Ninth Circuit’s observation that a court should resolve 13 all claims raised by a complaint that contains plausible allegations of imminent danger of 14 serious physical injury at the time it is filed. 15 The Court will thus consider Plaintiff’s Complaint in its entirety, beginning with 16 Plaintiff’s claim regarding Defendants’ use of lockbox restraints. 17 B. Lockbox Restraints 18 Plaintiff argues that he is at imminent risk of serious physical injury because his 19 current prison uses a specific, dangerous form of restraint—lockbox handcuffs—when 20 transporting prisoners outside the prison. See Opp’n at 2–4. In his Complaint, Plaintiff 21 alleges that Defendants required him to wear these painful lockbox restraints for 22 approximately seven hours during transport. Compl. at 4. Plaintiff told Defendants that 23 he was in pain, but they informed him that it was “CSP-Transportation policy to use the 24 lockbox handcuffs.” Id. These restraints trapped him in a stress position, cut into his 25 wrists, and made his left arm so sore that upon Plaintiff’s arrival to prison he sought 26 physical therapy. Id. at 4–5. Per Plaintiff, his physical therapist diagnosed his left arm as 27 weaker than his right, which motivated his physical therapist to prescribe him exercises to 28 rehabilitate it. Id. at 5. 1 Plaintiff first contends that because he continues to suffer the effects of his past 2 exposure to lockbox handcuffs, he qualifies for the § 1915(g) exception. See Opp’n at 2. 3 Plaintiff cannot, however, rely on his lingering injury from the handcuffs alone to 4 demonstrate that he is in imminent danger; for a danger to be imminent for purposes of 5 § 1915(g), it must be ongoing at the time the prisoner filed their complaint. Cervantes, 493 6 F.3d at 1056; see also Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (“Allegations 7 that the prisoner has faced imminent danger in the past are insufficient to trigger th[e] 8 exception to § 1915(g) . . . .”); Dustin v. Kern Valley State Prison Pers., No. 9 119CV00989LJOSABPC, 2019 WL 6463991 , at *1 (E.D. Cal. Dec. 2, 2019) (rejecting a 10 prisoner’s argument that continuing pain from a previous injury constitutes ongoing 11 danger). 12 Plaintiff does not rely solely on his previous injury, however. Instead, Plaintiff 13 identifies a specific instance where he will again be exposed to the same lockbox restraints 14 that caused his prior, lingering injury. Plaintiff alleges that he must be transported outside 15 of the prison every six months to see a cardiologist regarding his pacemaker. See Compl. 16 at 3, 5. Plaintiff also alleges that he was told by his prison’s transportation staff that they 17 use the lockbox restraints as a matter of policy. Id. at 4 . Construing these allegations in 18 Plaintiff’s favor, Plaintiff faces the choice of either subjecting himself again to the same 19 restraints that caused him lasting weakness in his arm or declining to receive medical 20 treatment related to a potentially life-threatening condition. See id. at 5 . This concrete, 21 upcoming choice—between potential nerve injury and needed heart treatment—is 22 sufficiently proximate, ongoing, and urgent to be imminent within the meaning of § 23 1915(g). See Cervantes, 493 F.3d at 1056–57 (“[A] prisoner who alleges that prison 24 officials continue with a practice that has injured him or others similarly situated in the past 25 will . . . meet the imminence prong of the three-strikes exception.”).4 [26] 27 4 Tellingly, neither Defendants’ Motion nor Reply addresses Plaintiff’s allegations regarding his need for 28 regular transportation outside of the facility. See generally Mot.; Reply. Instead, Defendants make only 1 As Plaintiff has satisfied the imminence prong, the applicability of § 1915(g) turns 2 on whether the alleged risk of physical injury associated with the lockbox restraints is 3 sufficiently serious. Courts have found a risk of injury to be sufficiently serious where the 4 risked injury is either life-threatening or associated with a loss of important bodily function. 5 See Cervantes, 493 F.3d at 1055 (concluding that the risk of contracting HIV or Hepatitis 6 C “plausibly raises the specter of serious physical injury” because said diseases “cause 7 serious health problems and can result in death”); Lewis v. Sullivan, 279 F.3d 526, 531 (7th 8 Cir. 2002) (noting that the 1915(g) exception does not apply when “bodily integrity is not 9 at stake”); Ashley, 147 F.3d at 717 (finding risk of serious physical injury where a prisoner 10 was housed near persons who had stabbed him previously); McAlphin v. Toney, 281 F.3d 11 709, 711 (8th Cir. 2002) (finding risk of serious physical injury where a prisoner was 12 denied medical care for a spreading infection in his mouth that threatened to destroy his 13 teeth); Gibbs v. Cross, 160 F.3d 962, 966 (3d Cir. 1998) (finding risk of serious physical 14 injury where a prisoner’s cell was full of unidentified particles that, when inhaled, could 15 lead to lung cancer). 16 Defendants contend that Plaintiff’s allegations regarding the risk of injury posed by 17 lockbox restraints are insufficient. See Reply at 4–5. In support, Defendants cite a series 18 of cases concluding that handcuff-related injuries did not allow prisoners to invoke the 19 § 1915(g) imminent danger exception. In those cases, however, the plaintiffs made only 20 conclusory allegations regarding future harm extending beyond minor cuts and wrist 21 abrasions.5 Here, by contrast, Plaintiff alleges that a specific type of restraint caused lasting [24] 5 See Turner v. Cnty. of San Diego, No. 320CV00163JAHAHG, 2020 WL 905633 , at *3 (S.D. Cal. Feb. 25, 2020) (rejecting plaintiff’s argument that the use of overly tight handcuffs at past and future court 25 dates placed him in imminent danger and noting that allegations regarding the risk of injury were conclusory and “not severe enough”); Shove v. McDonald, No. 14-CV-02903-JD, 2015 WL 5693730 , at 26 *3 (N.D. Cal. Sept. 29, 2015) (concluding that cuts and undue pressure from tight handcuffs do not constitute serious physical injury and rejecting the plaintiff’s allegations relating to permanent wrist injury [27] as conclusory/overly speculative); Bontemps v. Baker, No. 2:16-CV-2814-MCE-CMK, 2018 WL 28 4095922, at *2 (E.D. Cal. Aug. 28, 2018) (noting that plaintiff had failed to identify a future incident 1 || weakness and soreness in his arm. See Compl. at 4-5. These allegations, which are 2 ||consistent with nerve damage, are supported by factual allegations related to □□□□□□□□□□□ 3 || conversations with his medical provider. Jd. Though allegations of wrist abrasions alone 4 ||may not be sufficient, the risk of loss of function in one’s limb is sufficiently severe to 5 ||constitute a serious physical injury within the meaning of 28 U.S.C. § 1915 (g). See 6 || Ciarpaglini v. Saini, 352 F.3d 328, 330-31 (7th Cir. 2003) (concluding that the plaintiffs 7 || allegations of paralysis in his legs and back related to his lack of medication were sufficient 8 qualify for the imminent danger exception). 9 As Plaintiff has plausibly alleged that he faces repeated exposure to a form of 10 ||restraint that previously caused loss of function in his arm, the Court concludes that 11 Plaintiff faced an “imminent danger of serious physical injury” at the time he filed his 12 ||Complaint and therefore is entitled to proceed IFP in this litigation despite his prior strikes. 13 || See 28 U.S.C. § 1915 (g). The Court therefore does not reach the question of whether 14 || Plaintiff's allegations related to constant illumination separately qualify him for the 15 || exception. 16 CONCLUSION. 17 For the foregoing reasons, the Court DENIES Defendants’ Motion to Revoke 18 || Plaintiff’s IFP Status (ECF No. 19). 19 IT IS SO ORDERED. 20 ||Dated: January 31, 2024 (een on. Janis L. Sammartino United States District Judge